Milan, now an author of historical romance fiction, once a law prof, hits precisely the right tones for those already acquainted with the material. Here's a bit from Milan's "truncated transcript":

SOTOMAYOR: So let me ask a real question. If marriage is a fundamental right, is the state ever allowed to limit it?

OLSON: Er…yes?

KENNEDY: Enough about gays and lesbians. Can we talk about me for a
minute? Because I feel a little uncomfortable with this discussion. In
fact, I’m kind of feeling like taking my swing-voting ball and going
home. Who wants to dig the case?

[note: dig=acronym for Dismissed as Improvidently Granted]

OLSON: Uh. Kinda staggered here. You want to dig the case? We…we
spent weeks preparing for this, the entire country is watching, millions
of people could have their lives changed, and you want to dig the case?

The New York Court of Appeals today upheld a state statutory presumption that internet retailer "associates" operating within the state provide a sufficient nexus for the state to collect sales tax on the retailer's state sales. The ruling approves New York's end-run around the dormant Commerce Clause rule that a state can impose a sales tax on an out-of-state retailer only if the retailer has a physical presence--including economic activities by the retailer's employees, but not mere advertising.

With the rapid growth of internet sales across state lines, and with the last Supreme Court ruling on anything like this coming as far back as 1992 (on mail-order sales, of all things), this case may be a good candidate for high court review.

But on the other hand, the precise ruling in the case is rather limited. That's because the plaintiffs in the case pressed only their facial challenge at the Court of Appeals, not an as applied challenge. The problem here is that the statutory presumption can be rebutted, and an out-of-state retailer that can rebut it will also be exempt from it. This gives the presumption some wiggle room in certain cases and may be enough to protect out-of-state retailers against state sales taxes when they don't have sufficient business activity to constitute presence. The Court's ruling only says that the statutory presumption is not unconstitutional on its face. That's a far cry from saying that it's constitutional in every application.

a person making sales of tangible personal property or services taxable under this article ("seller") shall be presumed to be soliciting business through an independent contractor or other representative if the seller enters into an agreement with a resident of this state under which the resident, for a commission or other consideration, directly or indirectly refers potential customers, whether by a link on an internet website or otherwise, to the seller . . . .

New York Tax Law Sec. 1101(b)(8)(vi). The provision exactly describes Amazon's and Overstock.com's "associates"--local web-sites that include links to Amazon.com or Overstock.com and that receive a commission on each purchase through that link.

But neither Amazon nor Overstock.com has a physical presence in New York. And according to the Supreme Court in Quill Corp. v. North Dakota (1992), an out-of-state retailer like Amazon or Overstock.com has to have a physical presence in order for New York to impose a tax. (Quill Corp. involved an out-of-state mail order retailer. If you don't know what that is (!), click here.) Physical presence includes engaging in economic activities (like selling goods), but not advertising alone.

Enter the statutory presumption. The presumption says that Amazon's and Overstock.com's "associates"--those New York-based web-sites that contain a link to Amazon or Overstock.com, and receive a commission on each sale--establish a sufficient nexus between the out-of-state retailers and the state so that New York can impose its tax.

And the New York Court of Appeals OK'd it. The Court said that the retailers' associates were engaged in sufficient economic activity on behalf of the out-of-state retailers--business solicitation, and not mere advertising--to allow the state to tax.

Judge Smith dissented. He thought that the associates' links looked more like mere advertising, not business solicitation, and therefore weren't enough to establish a nexus between the retailers and the state.

The Court also rejected the retailers' due process claims, because the presumption is rational. The Court explained:

It is plainly rational to presume that, given the direct correlation between referrals and compensation, it is likely that residents will seek to increase their referrals by soliciting customers. More specifically, it is not unreasonable to presume that affiliated website owners residing in New York State will reach out to their New York friends, relatives, and other local individuals in order to accomplish this purpose.

In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell,
political
figures are falling over themselves to endorse your
side of the case."

ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine,available in draft on ssrn. Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory."

Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness. Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights." But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level. Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.

Ultimately, Hutchinson concludes that the present scholarly and judicial discourse

fails adequately to discuss the multiple factors that cause political vulnerability
among gays and lesbians. While some gays and lesbians possess power, most of them do not.
Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.

Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection. Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.

Similar to the Proposition 8 case argued yesterday, the fact that the government is not defending the constitutionality of the law raises a quetions about the Court's power under Article III to decide the issues.

Justice Kagan asked one of the most trenchant questions regarding standing and injury, especially given the Obama Administration's stated belief that DOMA is unconstitutional:

The Government is
willing to pay that $300,000, would be happy to pay that $300,000, but whether
the Government is happy or sad to pay that $300,000, the Government is still
paying the $300,000, which in the usual set of circumstances is the classic Article
III injury. Why isn't it here?

But Jackson answered that the federal government had not asked the Court to remedy that injury and that the Article III "case or controversy" requirement is "nested in an adversarial system."

Throughout the arguments on standing there was a search for the most controlling precedent - - - with Justice Roberts' asking "is there any case where all the parties agreed with
the decision below and we upheld appellate jurisdiction? Any case?" The general consensus seemed to be that Windsor was distinct from the most similar case, INS v.Chadha decided in 1983. (Chadha involved the legislative veto and produced a very fractured set of opinions on the merits). Justice Scalia had some barbs to throw at the present administration, contrasting it to when he was at the Office of Legal Counsel.

On the merits:

The challenge to DOMA is under the equal protection component of the Fifth Amendment, with the Solicitor General arguing that the standard to be applied is intermediate scrutiny and Kaplan arguing that DOMA failed even rational basis scrutiny. Yet the equal protection arguments were embroiled with the federalism and Congressional power to pass DOMA; Justice Kennedy stated that the federalism and equal protection issues were "intertwined." [A good example this intertwinement occurred in the First Circuit opinion that held DOMA unconstitutional.]

For Solicitor General Verrilli, the intertwinement aspect was a cause of consternation and undercut his argument yesterday in the Proposition 8 case that even a state law denying same-sex marriage violated equal protection and that the correct standard was intermediate scrutiny as the Second Circuit held.

The consistency principle of equal protection doctrine - - - that the same standard should apply no matter what classification was benefitted or burdened - - - was also a focus, with hypotheticals about the standard should Congress decide that it would provide federal benefits to same-sex couples even if the state did not recognize their marriages. [The question of who would have standing to challenge such a law did not arise].

Justice Roberts repeatedly brought up the question of animus as part of a rationality with bite inquiry, asking at least twice whether the 84 Senators who voted for DOMA and the President [Clinton] were motivated by animus. Justice Roberts also raised the question of political powerlessness, often an inquiry in determining the level of equal protection scrutiny. Roberts echoed an opinion expressed by Justice Scalia in earlier cases that sexual minorities were anything but politically powerless when he told Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political
figures are falling over themselves to endorse your
side of the case."

Justice Ginsburg probably uttered the most memorable quote of the day's arguments. In her questioning of Paul Clement, who represented BLAG, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full
marriage, and then this sort of skim milk marriage." Her remark would be even more noteworthy for people who recall that the scrutiny standard is often traced to the famous footnote 4 in Carolene Products, a case about - - - milk.

The suggestions of clearly articulated standards and rigorous
analysis are not simply the fantasies of a law professor. While Supreme
Court opinions need not be constitutional law examination answers,
neither should they be confusing, or marred by sarcasm or
sentimentality. Students studying law should be exposed to more Supreme
Court opinions demonstrating trenchant analysis rather than rhetorical
politics.

Clearly articulated standards might also allow the lower federal
courts as well as the state courts to engage in their own rigorous
analysis rather than attempt to discern the correct standard from
Supreme Court precedents that are unclear, internally inconsistent, or
point in several directions. This is not to say that the same-sex
marriage issue should have been easily resolved by lower courts or that
the applications of the standard are not difficult and value-laden.
However, the grappling of the lower courts for several years now
regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

Regarding the suggested holdings in the Proposition 8 and DOMA cases,
the Supreme Court’s clear conclusion that sexuality merits intermediate
scrutiny review, like gender, would disentangle the equal protection
doctrine from the animus inquiry. While certainly animus can be
operative, the inquisition into intent invites protestations of moral
belief or religious conviction. The false opposition between equality
and morals needs to be abandoned. Additionally, the linking of sexual
orientation and gender as quasi-suspect should lead courts to find
classifications based upon gender identity, transgender identity, or
gender nonconformity as similarly subject to intermediate scrutiny
review.
Additionally, the Supreme Court’s definitive holding that marriage is
a fundamental right meriting strict scrutiny review would extricate the
issues from the federalism quagmire.

The first question during oral argument was from Chief Justice Roberts and directed the attention of Hollingsworth's counsel, Charles Cooper, to the "jurisdictional" issue - - - the question of whether Hollingsworth has standing. Recall that the original challenge to Proposition 8 named Governor Schwarzenegger, and later substituted Governor Brown, as defendants, but both governors and the State of California refused to defend the constitutionality of the voter initiative. Recall also that the California Supreme Court had answered a certified query about the interests of proponents of a Proposition under California law, but today's the questions from the bench stressed Article III of the United States Constitution.

Roberts' query was repeated to Theodore Olsen, arguing for the challengers to Proposition 8, and to Solicitor General Verrilli, who noted that the United States, as amicus, did not have a "formal position" on standing, but essentially echoed Justice Ginsburg's first question to Cooper, regarding whether the proponents of
Proposition 8 had any "propriety interest" in the law distinct from
other California citizens once the law had been passed.

On the Merits:

A central query on the merits is the level of scrutiny under equal protection doctrine that should be applied. Justice Kennedy asked Cooper whether it could be treated as a gender classification and stated "It's a difficult question that I've been trying to wrestle with it." Yet Cooper's argument in many ways deflects the level of scrutiny inquiry and Justice Kagan expressed it thusly:

Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

Mr. Cooper agreed, and continued his argument, although Justice Scalia later tried to assist him:

JUSTICE SCALIA: Mr.
Cooper, let me -- let me give you one -- one concrete thing. I don't know
why you don't mention some concrete things. If you redefine marriage
to include same-sex couples, you must -- you must permit adoption by
same-sex couples, and there's -­ there's considerable disagreement among
-- among sociologists as to what the consequences of raising a child
in a -- in a single-sex family, whether that is harmful to the child or
not. Some States do not -- do not permit adoption by same-sex couples for
that reason.

JUSTICE GINSBURG: California -- no, California does.

JUSTICE SCALIA: I don't think we know the answer to that. Do you
know the answer to that, whether it -- whether it harms or helps the
child?

But given that Justice Kennedy is widely viewed as the "swing vote," his comments deserve special attention. During Cooper's argument, Kennedy focused on the children of same-sex couples in California:

JUSTICE KENNEDY: I -- I think there's
-­ there's substantial -- that there's substance to the point that
sociological information is new. We have five years of information to
weigh against 2,000 years of history or more. On the other hand,
there is an immediate legal injury or legal -- what could be a legal
injury, and that's the voice of these children. There are some 40,000
children in California, according to the Red Brief, that live with
same-sex parents, and they want their parents to have full recognition and
full status. The voice of those children is important in this case, don't
you think?

But at other times, Kennedy expressed other concerns. During Theordore Olsen's argument, Kennedy stated

JUSTICE
KENNEDY: The problem -- the problem with
the case is that you're really asking, particularly because of the sociological
evidence you cite, for us to go into uncharted waters, and you can play with
that metaphor, there's a wonderful
destination, it is a cliff. Whatever that was.

And soon thereafter, in perhaps what could be a possible avoidance of all the issues,

JUSTICE KENNEDY:
But you're -- you're doing so in a -- in a case where the opinion is very
narrow. Basically that once the State goes halfway, it has to go all
the way or 70 percent of the way, and you're doing so in a case where
there's a substantial question on -­ on standing. I just wonder if -- if
the case was properly granted.

MR. OLSON: Oh, the case was certainly
properly granted, Your Honor. I mean, there was a full trial of all
of these issues. There was a 12-day trial, the judge insisted on evidence
on all of these questions. This -- this is a -­

The critique of marriage as a legal institution may seem a bit churlish as the same-sex marriage cases go to the United States Supreme Court this week. It may seem as if there is universal agreement that marriage is "good" and the only question is whether governments can exclude same-sex couples from this "good."

Yet there is certainly a different way to conceptualize the issue. In Not the Marrying Kind, U.K. Law Professor Nicola Barker engages the issues from several perspectives. Importantly, her discussions do not portray the lesbian or larger LGBT communities as
monolithically desiring marriage, but rather as critically engaged in
questions of formal equality. She is scrupulous about presenting the
complexities of opinions, theories, and strategies across several
continents. Barker's book is a treat even readers who have been following these developments for
years or are suffering from same-sex marriage fatigue.

Even as we await the United States Supreme Court's opinion on the constitutionality of a university's affirmative action plan in Fisher v. University of Texas argued October 10, it has become clear that Fisher will not be the Court's last affirmative action case.

The en banc Sixth Circuit was seriously fractured, but none of the opinions considered the Court's affirmative action cases of Grutter and Gratz (or the pending case of Fisher). Instead, the relevant doctrine was the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief?
This underlying problem is similar to some of the arguments in the Proposition 8 case - - - Hollingsworth v. Perry - - - to be argued before the Supreme Court tomorrow, March 26, and certainly resonates with the Ninth Circuit's reasoning in Perry finding that Prop 8 was unconstitutional.

In the case of Michigan's Prop 2, the Sixth Circuit majority found it troublesome that only as to racial classifications in university admissions would a person seeking to change policy have to amend the state constitution, as contrasted to other classifications that could be changed by various other means, including simply persuading an admissions committee.

As to what the Court's grant of certiorari in Coalition to Save Affirmative Action might mean for Fisher, reading the "tea leaves" is difficult. As we observed when the Sixth Circuit decided Coalition to Save Affirmative Action, a very broad approach in Fisher - - - such as a declaration thatall racial affirmative action policies in education were
per se unconstitutional - - - would seriously undermine the rationale of the Sixth Circuit opinion. However, a grant of certiorari in Coalition to Save Affirmative Action does not mean that Fisher will be narrow or that it will uphold the University of Texas' affirmative action plan.

And one additional "wrinkle": Justice Kagan is recused in Coalition to Save Affirmative Action.